*1 Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.

PER CURIAM: ^[*]

Wayland Demond Hinkle pleaded guilty to possession with intent to distribute cocaine, and the district court sentenced him to 188 months of imprisonment. We vacated his sentence, holding that he did not qualify as a career offender under the Sentencing Guidelines. United States v. Hinkle , 832 F.3d 569, 576-77 (5th Cir. 2016). On remand, the district court imposed an upward variance from a guidelines range of 33 to 41 months and sentenced *2 Case: 16-11646 Document: 00514253034 Page: 2 Date Filed: 11/29/2017

No. 16-11646

Hinkle to 90 months of imprisonment and three years of supervised release. Hinkle now argues that the district court plainly erred under the Fifth and Sixth Amendments by imposing a sentence based on factual findings that were not supported by proof beyond a reasonable doubt. He concedes that his argument is foreclosed under current circuit law, but he raises the claim solely to preserve it for further review.

The Government has filed an unopposed motion for summary affirmance or, alternatively, for an extension of time to file a brief on the merits. Summary affirmance is proper where, among other instances, “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis , 406 F.2d 1158, 1162 (5th Cir. 1969). Because Hinkle’s arguments are foreclosed by United States v. Tuma , 738 F.3d 681 (5th Cir. 2013), the Government’s motion for summary affirmance is GRANTED, and the judgment is AFFIRMED. The alternative motion for an extension of time to file a brief on the merits is DENIED as unnecessary.

2

[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.